Fox v. Madsen
| Decision Date | 01 July 2009 |
| Docket Number | No. 4D08-2517.,4D08-2517. |
| Citation | 12 So.3d 1261 |
| Parties | John F. FOX and Laura L. Fox, Appellants, v. Christine MADSEN, Appellee. |
| Court | Florida District Court of Appeals |
Scott W. Zappolo of Watterson & Zappolo, P.A., Palm Beach Gardens, for appellants.
Cort A. Neimark of Fowler White Burnett P.A., Fort Lauderdale, for appellee.
In this appeal the appellants contend that the statute of limitations for specific performance bars the appellee's action for injunction to compel removal of a portion of the appellants' driveway constructed in violation of the declaration of restrictions for their subdivision. We hold that the five-year statute of limitations applies and affirm as to this and all other issues raised.
Christine Madsen and John and Laura Fox are homeowners of adjacent properties in the Greenwood subdivision in Coral Springs. Both properties are subject to the declaration of restrictions for Greenwood, which are covenants running with the land. After purchasing the property, Madsen filed suit for injunctive relief seeking to require the Foxes to remove driveway paving constructed to the property line between her property and the Foxes' property. She claimed that the driveway violated the declarations. The Foxes answered, claiming that the action was barred by the statute of limitations. After a full trial, the court entered a mandatory injunction requiring the Foxes to remove that portion of their driveway which extends into an easement on the property line.
The Foxes appeal, claiming that the action is barred by the one-year statute of limitations for specific performance of a contract. See § 95.11(5)(a), Fla. Stat. Madsen contends, on the other hand, that the action is one for injunction and is governed by the five-year statute of limitations set forth in section 95.11(2)(b), Florida Statutes. "A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review." Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007) (citing Chrestensen v. Eurogest, Inc., 906 So.2d 343, 344 (Fla. 4th DCA 2005)). We agree that this action is governed by the longer limitations period.
The Foxes assert that the situation in this case is nearly identical to that in Ferola v. Blue Reef Holding Corp., 719 So.2d 389 (Fla. 4th DCA 1998). The owners of a lot in a development filed suit against the developer seeking injunctive relief for violations of the declaration of covenants and restrictions. The complaint alleged that the developer violated the restrictions by constructing townhouses on a designated recreation area, failing to provide amenities for the recreation area, and failing to maintain common areas. The trial court concluded that the owners' claim for injunctive relief was really a claim for specific performance of contract and dismissed the case on the ground that the one-year statute of limitations had run. This court agreed with the trial court's conclusion and affirmed the dismissal.
While Ferola might appear on point, there are insufficient facts alleged to determine why the trial court concluded that the action was one of specific performance rather than injunction. If, for instance, the complaint sought to require the developer to provide the recreational amenities, then it could be an action for specific performance and not one of injunction. The claims in Ferola all related to affirmative promises or obligations on the part of the developer to build and maintain the development as contracted. Ferola thus is not directly on point.
More on point is Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579 (Fla. 5th DCA 2003), where the court squarely considered whether an action to enforce a declaration of condominium was subject to the oneyear statute of limitations for specific performance of contracts, or the five-year statute of limitations for legal or equitable actions on a contract. The Fifth District found that reasonable arguments could be made supporting the application of either statute of limitations. As the court recognized:
"Where a statute of limitations shortens the existing period of time the statute is generally construed strictly, and where there is reasonable doubt as to legislative intent, the preference is to allow the longer period of time." Baskerville-Donovan Eng'rs, Inc. v. Pensacola Executive House Condo. Ass'n, Inc., 581 So.2d 1301, 1303 (Fla.1991). If there is doubt as to the applicability of a statute of limitations, the question is generally resolved in favor of the claimant. J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla.1994); 51 Am. Jur. 2d Limitation of Actions § 92 (2000) (...
To continue reading
Request your trial
-
Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP
...... Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006); GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635, 636 (Fla. 3d DCA 2009); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003); see also Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (“A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” (quoting Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007))). A motion to dismiss tests the legal sufficiency of the ......
-
Access Ins. Planners, Inc. v. Gee
......Generally, “the issue of whether [a] claim is barred by the statute of limitations is a question of law subject to de novo review.” Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 859 (Fla. 4th DCA 2013) ; Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009). However, the triggering event for the running of the statute of limitations in this case is when the “last element constituting” the breach of contract occurred. § 95.031(1), Fla. Stat. (2014). The occurrence of a breach, or breaches, is a question of ......
-
Access Ins. Planners, Inc. v. Janice S. Gee, Jan Gee Ins., LLC, 4D14-1883
...of law subject to de novo review." Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So. 3d 855, 859 (Fla. 4th DCA 2013); Fox v. Madsen, 12 So. 3d 1261, 1262 (Fla. 4th DCA 2009). However, the triggering event for the running of the statute of limitations in this case is when the "last element......
-
Coconut Key Homeowner's Ass'n, Inc. v. Gonzalez, s. 4D17–739 & 17–1749
......Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against :(a) The association.(b) A member[.](Emphasis added); see also Fox v. Madsen , 12 So.3d 1261, 1263 (Fla. 4th DCA 2009) ("[A] mandatory injunction is the proper method of enforcing restrictive agreements on property."); Abbey Park Homeowners Ass'n v. Bowen , 508 So.2d 554, 555 (Fla. 4th DCA 1987) ("Injunctive relief is an appropriate remedy for the enforcement of regulations ......
-
Protecting your injunction on appeal in trial court.
...the Vineyards, Inc., 891 So. 2d 1063, n.2 (Fla. 2d DCA 2004). (12) Wilson v. Sandstrom, 317 So. 2d 732, 736 (Fla. 1975); Fox v. Madsen, 12 So. 3d 1261, 1263 (Fla. 4th DCA 2009); Trueba v. Pawley, 407 So. 2d 945, 946 (Fla. 3d DCA 1981). (13) Gulf Bay Land Inv., Inc. v. Trecker, 955 So. 2d 11......